*1 Langle, Sr., Kurkul, Jr. v. Walter William William Gary Kurkul, Kurkul, Walter Jr. Kurkul
[510 1301] No. 82-254 Billings, C.J., Hill, Underwood, Gibson, Present: Peck JJ.
Opinion January Filed Reargument February Motion for Denied Motion for Reconsideration Denied March *2 Wool, Langrock Sperry F. Parker & Susan Eaton Middle- bury, Plaintiff-Appellant. III,
Bartley Stacy Chapman, & J. Costello and S. Webber Jr., Free, Costello, Rutland, and Robert S. Burke and Edwin W. Associates, Barre, Defendant-Appellee. of Richard E. Davis Billings, July plaintiff party at the attended a C.J. Kurkul, defendant, party, At the home of Walter Sr. li- quantity intoxicating plaintiff was served consumed plaintiff quor and The then went to defendant became inebriated. plaintiff pool. The was Gary Kurkul’s residence swim his railing railing pool when preparing to from the dive pool. broke and he fell headfirst into the As result acci- dent, quadriplegic. plaintiff broke his neck and became alia, plaintiff’s complaint alleged,
The inter the defendant li- negligently unlawfully intoxicating him offered and served intoxicated, quor; plaintiff thereby became and as a direct intoxication, proximate injured result of this he was swimming pool plaintiff’s against all The claims the de- accident. fendants, Kurkul, Sr., except were out of court. Walter settled moved, 12(b)(6), to dismiss defendant under V.R.C.P. plaintiff’s complaint, granted the on the and the court motion ground plaintiff had of action failed state cause under either a common or 7 law doctrine V.S.A. § damage act, civil popularly Vermont’s known as Vermont’s Dram Shop Act. plaintiff appeals complaint his for failure dismissal
to state a cause of action. We affirm.
I. *3 plaintiff that he has a contends cause of action under Ver- Shop provides, part, mont’s Act. pertinent Dram The Act in that: husband, wife, child, guardian, A employer per- or other injured person, property son who is in support means of or by person, consequence or in intoxicated of the intoxica- any person, tion right in her shall have a of action his or name, jointly severally, person own against persons, or or a who, by selling furnishing intoxicating liquor unlawfully, in part caused in whole such . . . intoxication. 7 V.S.A. 501. §
We have in held numerous instances that where the meaning of a unambiguous, statute clear and we must construe it according Little express meaning. See, e.g., and enforce its Department Training, Employment & 247, 253, v. 145 Vt. field 507, statutory 487 A.2d approve We also of the rule of (such construction that when an in a as enumerated list statute “husband, wife, child, guardian, employer”) gen a followed term, general only eral term must be to include construed those terms which are similar in nature to the terms. enumerated persons Since Shop those listed in the in Dram Act stand some special relation to the person, intoxicated of the term use similarly who someone person” in the Act must mean “other occupies person intoxicated find that situated. We cannot had intended the relationship. If special that same person, easily have listed it could apply the intoxicated Act to designated in 501. persons along with the other § the inebriate Security, Employment 134 Vt. Department Grenafege v. See (“If 118, (1976) intent were 357 A.2d contends, clearly expressed.”). then be [appellant] as it would therefore, Shop Act a cause hold, gives Dram that the We persons injured an intoxicated only who are of action to third imbiber, remedy Shop no person. provides Act Dram guest or a be of a commercial whether he a customer vendor host, subsequent injuries to himself to recover for Consequently, we consumption of too much alcohol. of his result plaintiff not have cause agree the trial court that the does Shop Act. of action under the Dram
II. juris in reject holding of some courts other We also shop respective preempt acts states’ dram dictions their law in situations such as one remedy under the common Brown, See, Cunningham 22 Ill. 2d e.g., v. presented this case. (1961); Snyder Davenport, N.E.2d (Iowa 1982); Fidelity v. International N.W.2d Browder 615-16, Co., 321 N.W.2d Insurance 413 Mich.
(dram shop remedy). Vermont’s Dram held to the exclusive act be injured provides Shop Act of action strict cause negligence. persons; address a cause of action third it does not Therefore, cause the Act forecloses a cannot be said that repugnant law is “not negligence, since all common action 1 V.S.A. shall laws” in Vermont. to the constitution or § laws changed by if the statute 271. law is statute The common unambiguous language, or overturns the common law clear *4 law, or clearly the common the if statute inconsistent with subject E.B. & matter. See attempts statute to cover the entire 464, 446, 175 A. Whiting Burlington, Vt. City A.C. v. Co. of (1934) (“rules changed by not to be of common law are implication, except clear and unam nor overturned doubtful case, Shop does not biguous the Dram Act language”). this possibility foreclosing the of a any unambiguous language contain statute, merely of Nor is which negligence. cause action possi- gives liability, a of inconsistent with a cause action strict negligence. Finally, cause action in the statute does not ble of possible rights flowing purport to all the and remedies from cover injuries. such legislature’s reject argument
We that the consid also (as problem evi injuries eration of the of intoxication-related Shop Act), coupled its a denced the Dram failure to enact case, covering present indi statute a situation like one in cates that the intended to immunize the social host negligently serving liquor guests. from to his her Harrington Gaye, 124 Vt. 200 A.2d See (1964) (court cannot intent ascribe to a mere act omission); Saund, Saund v. Vt. A. (statute (1927) implication enlarged by cannot unless neces sary accomplish object). to make it effective its
III. plaintiff’s argument We next address the that he has negligence. cause required action common law elements (1) cause action in common law are: the de legal duty fendant must owe conform to a certain standard of protect plaintiff conduct so as from an unreasonable risk of harm; (2) the defendant must have committed a breach this duty by failing to conform to required; the standard conduct (3) the proximate defendant’s conduct must be the cause of the plaintiff’s injury; plaintiff must have suffered actual damage. Keeton, loss W. Prosser W. Law Torts § (5th 1984). at 164-65 ed.
The first issue we must confront is whether we rec should ognize duty on part of a social host toward an intoxicated guest adult under negligence. common disposi law Because of our tion this issue our legal determination that there is no duty owed, unnecessary for us to reach the other elements required for a cause of action under negligence. common law
To expansion such an of the common law as undertake requires, in public reasons, case compelling policy absence of improper would be judicial legislation. Wherever courts of other recognized states have of a social host not to furnish intoxicating beverages guest injury to a party where to a third *5 518 foreseeable, they generally done so one two
may (a) beverages social host furnishes alcoholic situations: where the visibly to the host is and it is foreseeable to one who intoxicated (b) automobile, an where guest drive will thereafter beverages to a minor. furnishes alcoholic social host involving negligence duty in a cases Some courts have found particular se, a defendant social host violated per where the prohibiting the safety involved statutes statute. Some cases have Congini v. Portersville see, minors, e.g., serving alcohol (1983) Co., 515, 157, 161-63, (citing Valve 470 A.2d 517-18 504 Pa. Crook, (1983)); Koback 6308, 123 v. Wis. 18 Pa. Cons. Stat. 306 §§ (1985) 266, 857, 259, (citing Wis. Stat. N.W.2d 860 2d 366 §§ 176.30(2)(a) (1979-80)); 66.054(20)(a), while others involved stat obviously serving to an prohibiting utes a social host from alcohol Court, 144, Superior Coulter v. guest. 21 Cal. 3d 150- intoxicated (1978) 534, 669, 672-73, Rptr. (citing P.2d 145 537-38 577 Cal. (West 1964), over 25602 Cal. Business and Professions Code § (c) 1714(b), (West 1985); statute, Sutter ruled Cal. Civ. Code § (cit Hutchings, 194, 197, Ga. S.E.2d 718-19 v. 327 3-3-23(a)(1) (1982)); Clark v. 3-3-22, ing Ann. Ga. Code §§ (Iowa 1985) Mincks, (citing Iowa Code Ann. N.W.2d (West 1983)). 123.49(1) Supp. Cum. § Although liquor control laws make it a misde Vermont’s any person imprisonment punishable by fine or meanor host) (whether a to sell or furnish a vendor or social commercial minor, 658, Vermont has no beverages to a 7 V.S.A. alcoholic § (commercial any comparable making person it a crime for statute host) beverages to an to sell or furnish alcoholic vendor Therefore, statutory is visibly there no adult who intoxicated. per se. present finding in the for a basis case part finding duty a on of a social ground The second duty part recognition host been of a common law on has guest posing from prevent social host to an intoxicated date, recognition danger party. To foreseeable a third involving duty has been to factual situations such a limited Coul- See, public highway. operation e.g., of a motor vehicle on ter, 674-75, 152-54, Rptr. supra, 21 Cal. 3d at at 145 Cal. 577 P.2d 539-40; Sutter, supra, Kelly 719; at 327 S.E.2d at Ga. Gwinnell, (1984); Wiener 538, 548, 476 A.2d 96 N.J. Omega Fraternity, Chapter Tau Alpha Or. v. Gamma Phi present case 485 P.2d outcome duty, recognize running turns whether on this Court should a new guest, from a social host inebriated adult in a factual situa- to an tion involving driving. drunk primarily question legal
Whether there is a dependent upon variety upon of relevant factors and considera- “ ‘[D]uty’ itself, public policy. tions of is not sacrosanct but expression pol- sum total of those considerations of icy say particular plaintiff which lead the law to enti- *6 Legg, 734, protection.” 728, Dillon tled to v. Cal. 2d 441 68 P.2d 912, 916, (1968) 72, Prosser, Rptr. (quoting Cal. 69 76 W. Law of (3d 1964)). Torts 332-33 ed. considering recognition
In
duty involving
the
of
newa
a social
Supreme
host
guest,
and an inebriated adult
the California
Court
duty
primarily
stated: “The
a
question
existence of
a
of
factors,
dependent
upon
variety
and
a
of relevant
of which
”
‘foreseeabilility
primary
of the risk is
.
a
consideration
. . .’
Coulter,
supra,
152,
674,
21
at
Rptr.
Cal. 3d
We have
identified certain
other
factors
than
foreseeability
determining
in
the ultimate
existence of a
“duty” to
persons.
third
These factors
“. . . the
include:
de-
gree
certainty
plaintiff
of
the
injury,
suffered
the close-
ness of the connection between the
conduct
defendant’s
injury suffered,
the
the moral blame
the
attached to
defend-
conduct,
policy
harm,
ant’s
preventing
of
future
the ex-
tent of the burden to the
consequences
defendant and
community
imposing
duty
a
to exercise care with result-
ing liability
breach,
cost,
availability,
and the
preva-
lence of
insurance
the risk involved.”
Id. at
153,
674,
Rptr.
P.2d at
Row-
(quoting
Cal.
at 539
Christian,
land v.
108,
113,
564,
2d
561,
69 Cal.
443 P.2d
70 Cal.
(1968)).
Rptr.
Supreme
The California
Court
in
concluded
Coulter public
the “strong
policy
prevent
injuries
future
[involving
driving]”
drunk
recognition
duty
warranted
of a
on
part
aof
host
to increase the obvious intoxication
guest
of a
when the
guest
host knew that
intended to drive a
motor vehicle. Id.
Rptr.
at
In Supreme stated: Court duty is so imposing such a justice
In most cases is assumed clear the cause of action of an unrea- simply of the actor’s creation exist on the basis fact, resulting injury. risk foreseeable harm sonable however, needed, judgment, being the value more is “more” analysis public policy, that the actor owed based on . . . party duty of reasonable care. injured “[W]hether The in- duty ultimately question of fairness. exists parties, relationship of the quiry weighing involves risk, pro- public interest and the the nature posed solution.” Goldberg supra, (quoting at 1222
Kelly, at 476 A.2d 96 N.J. Newark, Authority Housing N.J. 186 A.2d Jersey Supreme (emphasis original)). The New stated, that a exists and the court determines Court “[w]hen extended, on fairness draws lines based will be Thus, recog- policy.” Id. 1222. that court at dangers associated with goal reducing nized societal host: driving holding a social drunken *7 injuries party a result of the inflicted on a third as liable by guest operation vehicle the adult negligent of a motor by im- intoxication. We when such is caused party we be- pose duty on host the third because to imposition policy lieve served its considerations opposition. outweigh in far those asserted 548, 476 Id. at at 1224. A.2d case, miss
Turning present one crucial element duty imprimatur legal exists. Our Court should not ing; our a enlarge existing one recognize new without a cause action public policy rea determining compelling a first whether there is change. son for Jersey appellate
In a
an intermediate New
recent decision
“Kelly
Kelly
court,
as
to
the lead
the court declined
follow
resulting from
liability
‘injuries
host
expressly limited the
a
to
”
Walker,
driving.’ Griesenbeck
199 N.J.
guest’s
drunken
Div.)
1038, 1041
(quot
(Super.
App.
Ct.
Super.
denied,
1230),
Kelly, supra,
cert.
ing
Id. at
No policy pointed reasons have been out for impose this Court to legal host, of care on a social absent a situation where the social host furnishes alcoholic bever ages visibly to one who is intoxicated and it is foreseeable to the guest host that the automobile, or, will thereafter drive an where the social host beverages furnishes alcoholic to a minor.
Affirmed.
Peck, J., concurring. agree I with the affirming result the lower court’s plaintiff’s dismissal complaint grounds and the upon which However, the affirmance is based. there is much that is stated in opinion with which I agree. do not Accordingly, I compelled feel concurring opinion submit this to indicate those my areas objections which lie.
I. yet listing specific Without opinion items with which agree, cannot I have objection an overall applies equally *8 They all of them. hypothetical questions address of law that do not fall scope within the gave facts that litiga- rise to this They tion. and, are not in the case accordingly, properly are not before us They result; resolution. nothing contribute 522 im- They an us. constitute anything before
they extraneous are advisory opinions dicta; they are law attempt to make proper overstepped the boundaries opinion has at best. The appellate functions. proper Court’s Constitution by our State power, conferred “ controversies actual Court, right to determine ‘the upon this proper ju- courts duly instituted litigants, adverse between pro- decide and a court to power ‘the . . . .’ It is risdiction persons and between carry into effect judgment nounce ” Bill In re House before it for decision.’ parties bring a case who added) (1949) 169, (emphasis 529, 88, 524, A.2d 172 115 Vt. omitted). (citation 88, Bill consistently, In re House since held has
This Court scope advisory opinions are not within supra, purely Con- the Vermont powers and functions conferred consistently, have, declined also Accordingly, we stitution. Nash, Vt. State v. opinions. render such Telephone & Tele- England (1984)1; v. New Chesshire (1981); Wood v. Co., 428 A.2d Vt. graph 120-21, Wood, 370 A.2d 135 Vt. decide, sua out and standing to seek legitimate have no
Courts merely own invention hypothetical issues of their sponte, purely impatient that court is they intriguing, or because a are because precisely yet by litigants. Yet that raised issue has not been extra-judi- done. It is no less majority opinion here has what proper opinion. in an otherwise merely it is contained cial because appear- natural regardless of its change, apple A does not wax apples a barrel. placed among real ance, simply it is because (1) legitimate issues: two there are In the case at hand action person, has a cause of plaintiff, intoxicated as an whether host, Sr., under the Kurkul, his against defendant Walter cause of plaintiff has a Act, Shop whether Dram Vermont negli- doctrine of common law under the against his host action to address two issues goes beyond these opinion gence. When Court, adopt phrase case, not in the questions which are vires”; more so because all the acting “ultra corporate from prevent such an which can is, literally, power on earth no there Nash, “hypothetical factual situa supra, expressly to address we declined advisory under the not authorized tion,” holding so would be to do Constitution. Vermont *9 only judiciary. upon the check our own exercise action “[T]he United States But- power is our own sense of self-restraint.” ler, (1936) (Stone, J., dissenting). U.S. against wrongs justice
One of the attendant under the system, here, I complain in the inherent lack of restraint of which unopposed lies in fact the court becomes an advo- the that itself position theory opportunity cate No to stated or of law. be persons may heard afforded or interests a con- those who trary contrary, position. might whose to the Those views be might day persuasive, for all we know be are denied their in my power. In court.2 view action is a serious abuse of such
II. I my Section of this concurring opinion expresses strong objec- appellate tion to the use of judicial opinion as a medium questions deciding hypothetical. However, purely of law that are my disagreement such with a course of conduct does not exist vacuum; case, disagree the instant also with the resolution of hypothetical these issues.
A. opinion The digression hypotheticals by commences its into (Act) holding Shop “preempt Dram Act not a rem- does edy under common law such situations as one presented in this appears case.” The basis for be this view to does negligence. Act not address a common law action Therefore, precluded, such part an action is not of the law of Vermont under 1 V.S.A. simply negligence because ac- § common tions exist at law.
In my view superficial. this conclusion too limited and question is not whether common law exist in actions Vermont, but whether such are actions to be extended to situa- here, presented tions such as the one as to involving well cases persons, minors and third or existing whether statutes consti- preempt preclude remedy. tutional law such a myself all, prepossessed my judgment “That I suffer to not with till Hale, History parties whole business and both be heard.” Sir Matthew ed.). (4th Common Law XV unheard, though justly, “He who decides a case with the side other he decide Seneca, unjust.” Medea. is himself question preemption, must proper approach we look, Act, dealing legislation with the but all any beverages as well as control the sale and use alcoholic The Act is but pertinent provisions of the Vermont Constitution. relating to part legislative scheme intoxication and one furnishing liquor. control of the sale view, agree, if expresses which I opinion legislature among include drunk those entitled intended to Act, fur- against under the one who an action strict Similarly, but on broader liquor, nishes it would have said so. scale, quali- if intended that those who otherwise *10 remedies, i.e., two under the Act fied could choose between liability, negligence, it would also strict or under common law comparable Act to language so. But there is no the said special commonly statutory rem- in instances where found expressly edy provided, with law remedies alternative common Thus, example, 7043(g), relating 13 V.S.A. to the recognized. § crime, may of paid to the victim a which court order restitution precludes this provides: ordered under section “No restitution independent person granted pursuing an civil ac- such relief from comparable an alternative Significantly, right tion.” there is no to action, sounding negligence in tort for other- common law civil wise, in the Act. control the
Looking further into the scheme for of sale, find, consumption beverages, furnishing, and of alcoholic we body statutory subject law the ex not a substantial on Act, tending beyond continuing attention the but also a far bills, virtually appear and subject: new new laws amendments Assembly. to in every It relevant this session of the General presently pending legislature the quiry there are before bills which, enacted, strict if will the Act to include the extend (House 207), persons injured Bill and raise hosts to third say 21. is no to that these drinking age the minimum to It answer question the may pass; bills not fate not material to their Thus, law, preemption. adopted, if H.207 is it becomes and even impose stronger strict than common law since would liability. rejected, legislature If can it is we be satisfied that that, by Legislative writ office as of the date this
3 Iam informed Council present ing, relating pending DUI session six bills to alone before there are Assembly. of the General liability. Accordingly, I impose does not see fit social host must Court, regard by especially in question a resolution of the this arbitrary advisory opinion, form of simply a race with the mostest,”4 and, “git ignor- thar fustest with the ing impose powers, the constitutional limitations on its a new law upon people legislation. of this state indicates, may approach
As the last statement above we also advisory holding through aspect: its constitutional the doc- separation powers. trine of the Vermont The section of Consti- Chap- tution which establishes this doctrine as law in this state is II, Executive, Legislative, ter which “The reads: and Ju- § distinct, diciary departments, separate shall be so that powers properly neither belonging exercise to the others.” primary legislatures, It is axiomatic that function indeed laws, make the very existence, reason for their is to while it is primary disputes function of the courts to resolve actual jurisdiction contending parties, matters within their between is, interpret apply particular the laws to cases: jus dicere,
Judges ought to remember that their office is jus dare; interpret give and not to make law or law. Essays: Bacon, Judicature
F. Of I upon think it is these truisms that doctrine (which hereafter) restraint my will address is based. For imme- however, purpose, diate opinion argues applicable that since *11 common repugnant law “not to the constitution or laws shall be ,” 271, therefore, in laws Vermont. . . . 1 V.S.A. in action § negligence in matters such as the instant case is not foreclosed. analytical
This depth. rationale lacks Not is the Constitu- law, it is the most fundamental of all our state law. It is the tion law with which all other laws must conform or be struck down upon proper follows, challenge. inescapably, simply It be- cause common law actions in negligence generally are not con- law, trary to the action can never specific it does not mean that a Particularly proposed be. is this if so the substantive right merely device, which a of action procedural is the is con- trary and, therefore, prohibition contrary to a constitutional to 4 Forrest, A comment attributed to confederate General Nathan Bedford but probably apocryphal. 526 Thus, distinguish majority opinion the fails between law. to is, action, right of and the substantive procedure, that
mere case, liability, procedure of aspect, in which the this social host liability has never before been no a servant. Social host more than part of the common law of Vermont. II, Chapter
I 5 of the Vermont Constitution recognize that § separation of The line require an functions. of does not absolute “overlap- always is not defined clear. Some demarcation well by blending” powers of exercised each of the three ping or Trybulski departments may inescapable. v. Bellows Falls be (1941). 1, 6-7, 117, Hydro-Electric Corp., 112 Vt. A.2d exist, Jacobs, Nevertheless, State v. Vt. the border line does (1984); 1247, to breach that line when A.2d by the border lines drawn reasonably discernable “violate [s] id., powers,” separation of and “would doctrine of constitutional legislation.” Id. constitute interpretation opinion quibble will not Harrington
holding Gaye, 124 Vt. (1964), legislative to a mere intent cannot ascribed act much a mere But we have more than act omission. case omission; body statutory wide-ranging have a law evi- we legislative preemption. point More to here is dence Supreme Louis D. United States Court Justice statement justify legislation.” “A not casus omissus does Brandéis. Poston, 266 U.S. Ebert v. judiciary is one will comment Brandéis that the
That Justice particularly apropos Simply do It is here. well to bear mind. yet social host because the has not enacted alone, sufficient, standing justify holding into law is not opinion. relating beverages in the The laws to alcoholic contained comprehensive, continuously evolving and in- are broad and so so scope, preemption creasing legislative of the field clear deliberately eyes This anyone does close his to it. be- who ing so, scope remain within the remaining the few omissions also government. powers the exclusive branch along misty “overlapping blending” They do not lie border- negligence Accordingly, of common law line. extension law; Chapter repugnant does it is social host issue violate the Jacobs, II, supra. See State v. 5 of the Vermont Constitution. § *12 B. expresses that dissent the view the result reached majority opinion is based on the concern “that this Court would ‘judicially be legislating’ if it were entertain this cause of ac- However, majority opinion tion.” examination does not any indicate such concern as for the the basis result. basis for stops policy; goes result no further. case, I have concurred in majority result this because it is right Nevertheless, disappointed itself. I am the rationale go did increasingly not further. have become with concerned many tendency judges upon of too courts and to look themselves ministers, as specially people ordained decide for the what the people want, good put- need or and what is is not them. In ting practice, usurp this belief into courts all too often law-making powers legislatures; they deliberately ignore of their implicit purpose, limitations their basic function and which is, earlier, disputes litigants noted resolve between under existing law; dicere, jus jus dare.
To power the limited extent the courts do have the to make caution, reluctance, it should be exercised with even and cer- tainly great with law-making always restraint. should “[J]udicial cautiously employed severely should be restricted England Co., New Co. scope.” Coal & Coke v. Rutland R. (2d 1944). F.2d Cir. has been passage There brief duty time since this recognized Court its of restraint: “State judicial restraint which courts . . . encompasses . . . sovereign power deference to exercise of the allo- body by cated to that the state constitution.” State v. Ludlow Inc., Supermarkets, 141 Vt. added).
(emphasis Ludlow Comparing arbitrary this today’s statement res- olution hypothetical questions, apparent it is painfully give lip Court will service to when it restraint serves so, a desired to do ignore way result it when it in the stands result, of a legis- else Court has little concern for either the prerogatives, lature and its constitutional or for restraint. injuries by the case of social host drunks to third persons, minors, liquor and where is furnished to neither of which here, in any way majority opinion addressing involved hypotheticals purest by holding in their form common law *13 furnished the against the host who lie
action of will “guest’s of a party injured as a result liquor of a in favor third correctly, in of a and, opinion favor if I read the driving” drunken inBut his own intoxication. injured if is as a result of minor he party” or a either a “third are involved with this matter we not minor. legislating in its
Moreover, notwithstanding prohibited this entirely it is that so emi- form, escapes me what egregious it most any up this Court at nently justices who make qualifies the five many years, has time, experience, for training and given whose law,” sharp quillets of the entirely in the “nice been almost II, VI, I, they Henry Sc. become Shakespeare, King Part out, recognize winnow suddenly eminently qualified to and and concerns, exactly it and what of human interests from the morass need, Apparently is people demand. it people what the is the and mold, vague from us to insight this and which enables wisdom “demands,” are clay new laws which of “needs” and and formless by they legis- if people had been enacted binding as on the as hearings and due deliberation charac- public lature itself after the process, distinguished from the as teristic of the input secrecy popular access and which camera and denial law-making. shrouds Supreme D. is States Court Justice Louis Brandéis
United why gentlemen reason five quoted having said: “There is no majority] should know bet- Supreme Court [United States] [a gentlemen Congress.” five public policy ter demands than what Mason, Life, agree A. A Free Brandéis: Man’s this, go further add that the bench of this but would even full all, qualified, they qualified if Court is far less are determine demands, public legislature, than is the full what the needs and input, public large its num- procedures receiving with its and widely representatives ber of who have varied occu- and senators by pations backgrounds. passage an and Even if the act is, necessary guarantee no of wise it neverthe- less, courts, legislature, right not the which has both duty Except make laws. in a under our State Constitution to very duty” “right sense is not a which limited concurrent judiciary, must shared with the at the whim of latter. Except result, disagreement ma- for the narrow on the final They express jority opinion similar. them- and the dissent are words, very say things. but much the same Es- selves different they rely sentially language both on which has been used years expansion brief, justify powers. courts for their argument something is that whenever the courts find which they perceive demand, they to be a social need sally knights forth like enact errant and new laws to resolve these statement, needs language and demands. This in whatever it is expressed, has become such a cliche and so useful as an excuse for implementing any whim, accepted almost it by succeeding generations relied on thought of courts without a questioning validity yet, the universal does have. And it is very increasing judicial legisla- foundation for the exercises tion separation powers espoused and violations of the doctrine many however, language, too courts. Such entirely court-cre- ated and self-serving; gives credibility it is much abused. It to a phrase having currency among some critics courts: “The *14 Imperial is, Judiciary.” phrase The regrettably, appro- all too priate. be, appellate
However judges may agree learned the law I completely Frankfurter, Supreme Court Justice Felix when he “Justices policy said: of the Court are not . . architects of . incapable they fashioning of are their own solutions for social problems.” Mr. Frankfurter, Supreme Justice Holmes and the F. Court, added). (emphasis many What all too courts are doing equate to legal knowledge is knowledge, with universal any My logic. experience point without basis in fact or own at this judicial is legislation that often consists of little more than the personal philosophies subjective jus- and reactions of individual specific tices engenders case which legiti- new law. Little mate research is sociological impact, directed to its or to the people needs and simply drops demands of fact. The Court on; its blindly, bomb and having flies it strikes out neither resources, time, qualifications or the to conduct or evaluate impartial research. majority opinion claims,
The imply, seems to and the dissent duty legislate they they courts have a when believe demand, unearthed a social duty need or as if this was a com- brought engraved mand to them in stone from an unidentified deity. Such a bland statement obscures the true of source this duty. being It came into and exists because the courts them- say imposed by legislature selves it exists. It not the Ver- all; mont duty power. Constitution. In fact it is not a it is by the doctrine such, however, constitutional it is limited Even doctrine, violations of powers. frequent separation of of duty. The claim power, not into a do convert abuses of that and hy- today’s legislation on judicial based duty justify cannot all; as an exercise exist at duty it does not potheticals; as case, it an abuse. power this Hay from quote duty leads the dissent finding of a 533, 543-44, Hospital,
Medical Center Vt. issues, complex (1985): with these difficult confronted “When duty into the safe haven shirk its and retreat this Court did being from a well-turned legislature.” Aside deference to the respect who the limitations that courts phrase designed suggest abuses, powers, from are timorous their and refrain cowards, govern- their sister branch of hiding behind the skirts of ment, very suggest I a mo- much. do not for doesn’t mean this never, circumstance, any may conceivable ment that the courts point My law. claim making new law to extend the common decisions, this here, goes only to case. from nonissue aside concern, express my with- Beyond I no more than to intend are, increasingly, demonstrat- litany specifics, that courts out disrespect legislative prerogatives, re- ing a serious straint, separation powers. “shirking” It is not and the its limita- respects constitutional recognizes when Court it is judges; not a haven” for timid tions. The “safe law-making government under Constitu- branch of state tion. cite, purpose either as does the dis- meaningful
It serves no sent, say new past from the which this Court made law. cases First, may wrong have been two reasons. Court *15 so, they If power in or more those cases. do not abused its one of wrongs never today’s right; make action two more did that. any if the action was Secondly, properly taken in of cases cited, books, they prece- any do serve a in on the not others them, case, including for case. one of the instant dent Each concern, entirely in has its lie different areas of social and each separate legislative preemption. Each must own evidence of case stand on its own. us, legislative preemption
In the matter before evidence restraint, separation A overwhelming. for case clearly respect powers government our sister branch of
531 so; It appears.5 would not have a been “retreat” to have done it courage would have demonstrated our in judges and character as which, resisting heady temptation, grateful acknowledge I am to join, appears in least the result. Gibson, recording my colleague, I resist cannot Justice humor, good my that, called to in support attention the fact of his dissent, quotes by he cites and from law review article a writer my respond with the same surname as I own. can to this equally good that, with the if humored comment the article does truly dissent, support the are there at least two “Pecks” who will never combine to make half a bushel.
Gibson, J., dissenting. agree with much of what has been However, majority opinion. said in restricting the involving minors, social hosts to cases drunk drivers and majority “judicial draws too fine a line.” Once a cause action recognized overserving for the of alcohol to obvi- ously potential minors, difficult, intoxicated drivers and it is if impossible, deny not to the existence of a of action in cause other egregious imagination situations. It takes but little to conceive equal, circumstances wherein a social host if would have an greater, legal duty serving beverages to refrain from alcoholic to a visibly person. already intoxicated Certain incidents have led litigation. E.g., Clendening Shipton, App. v. 149 Cal. 3d 196 (1983) Rptr. (foreseeability Cal. 654 guest of intoxicated assault- neck, ing breaking own being wife and her after overserved hosts, jury question; predated held be a incident Califor- legislation precluded Cantor v. An- liability); nia social host derson, App. Rptr. 126 (develop- Cal. 3d Cal. mentally person, disabled lose known to control and become decisions, Vesely Sager, Rptr. In two v. Cal. 3d 486 P.2d 95 Cal. Court, Superior (1971), and Coulter 3d Cal. 577 P.2d 145 Cal. Rptr. (1978), Supreme the California Court held that social hosts were liable injuries guest they beverages. caused to whom had furnished alcoholic legislature responded by holding abrogating of that state Court’s cases, name, citing expressly by through statutory these them Af amendment. expressing abrogate holdings ter its “intent ... above cited [the cases],” expressed the amended statute the will of the to restore immunity. traditional social host See Civil California Code Section point is, rather, legislature; is not the wisdom either the court or the right power legislate representatives people, lies with purpose, elected for that not with the courts. *16 532 being served alcohol after drinking, attacked woman
violent when
liability
host
social
hosts;
precluding
statute
California
social
incompetent
is served to an
liability
alcohol
bar
when
held
to
consumption);
voluntarily to resist its
be
person known to
unable
(1973)
35,
Bitzenhofer,
Taggart
The “immunization hosts is not the inevitable result of analysis points negligence, conventional law Gwinnell, Kelly strongly exactly opposite v. direction.” 543, 1219, Oregon, when a so N.J. 476 A.2d “ dealing persons he is ‘has reason to know that cial host they likely especially make it will do whose characteristics ” intoxicated, things’ when the host who furnishes unreasonable persons may injuries alcohol to such held liable for caused intoxication. Wiener v. Gamma Phi them as a result of their Chapter Omega Fraternity, Alpha Tau 258 Or. (1971) (3d (quoting P.2d Prosser on Torts at 175 ed. § 1964)). requires approach Such an enactment “[n]o Manning ; Andy, ordinary . . . 454 Pa. tort law.” J., (Pomeroy, concurring). pleadings representation make as to herein no whether person especially likely plaintiff is a to do who unreasonable things had when intoxicated whether defendant reason any part plaintiff. know of such characteristic on the would plaintiff opportunity his remand the case allow amend pleadings necessary so, to set if allegations, forth he does prove his case.
As for the the majority concern of that this Court would be “judicially legislating” action, if it were to entertain this cause *17 we must not stick our heads in the when there is sand demon- change development strated need for a the common law. “The of the peculiarly law torts has been now a function of judge.” 567, 571, the common law v. Wolf, Lewis 122 Ariz. 596 (Ariz. 1979). App. fact, P.2d 709 Ct. “there is a remarka- of legislative ble dearth incentive to consider or initiate reforms Peck, of tort Legislatures law.” The Role the Courts and Law, (1963). the Tort 48 Minn. L. Rev. Reform of judiciary cognizance law; must vitality take of the of the common society evolve, as the needs of obligated we are “to a diffi- face legal question accept cult judicial responsibility for a needed change Hay in the common Hospital, law.” v. Medical Center Vt. A.2d Supreme
The Vermont
frequently
Court has
resolved difficult
problems by reevaluating
E.g.,
the common law.
id. at
(minor may
A.2d at
parental consortium);
recover for loss of
Smith,
Sheltra v.
136 Vt.
(recognized
[m]any produced change these cases have which would profound effect on relationships, social and business industry-wide patterns, such as insurance husband-wife rela- tionships, obligations, and lessor-lessee to mention most obvious. When confronted with these difficult and issues, complex Court did not shirk its and retreat into the safe haven of legislature. deference to the It is the responsibility of the competing courts balance interests and to arising allocate losses out of human activities. One of principal purposes compensate of the law of torts is to people injuries they sustain negligent result conduct of others.
Hay, supra,
543-44,
145 Vt. at
&
(citing
A court does not mandate, a new cause of action it creates legislative sence of need. meet a societal respect judiciary’s reform function
[Recognition legis- no conflict with torts involves actual to the law of contrary are on an artificial Arguments based lature. view and doctrinaire process rigid or a legislative of the view may Indeed, activity well . .. common law. system government, ap- complement representational ig- that would otherwise prising legislature of matters process. nored in the turmoil of Peck, supra, at 292-93. act, squarely in the problem sits legislatures
“[U]ntil be hindered lap judiciary. in this area should of the Reform [not] .... The in- conceptions function ... narrow (em- Koloff, problem.” supra, 60at is a social toxicated tortfeasor phasis original). *18 would, therefore, oppor- plaintiff remand this case allow pleadings. Only
tunity to his appropriate amendment to make an then be dismissed. if he to do so should the case fails say joins Hill this dissent. I am authorized that Justice Wayne L. Kozel of Vermont v. State [505 1221] No. 84-049 Allen, C.J., Hill, Peek, Hayes, Present: Gibson JJ. January
Opinion Filed